DHILLON SUKHWANT SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL676/2017

[2018] HKCFI 1696

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 676 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is an Indian national who entered Hong Kong on 12 September 2006 and was granted several extensions to remain; he was last permitted to remain until 31 October 2006 but overstayed.  On 13 November 2006 he applied for an extension of stay but was refused and then failed to attend an interview on 17 November 2006 at the Immigration Department to discuss a suspected offence of overstaying.  He was arrested on 20 May 2009 by the police for overstaying.  He later raised a torture claim which under the Unified Screening Mechanism became a claim for non-refoulement protection and assessed on all applicable grounds which was rejected by the Director of Immigration (“the Director”) on 19 September 2014.  He lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was heard and then dismissed on 17 September 2015.

2.  The Director went on to dismiss the applicant’s BOR 2 risk claim by way of a Notice of Further Decision dated 17 January 2017 and the applicant lodged an appeal/petition on 25 January 2017 to the TCAB.  In it he repeated his case as previously presented to the TCAB; he added nothing new.  The TCAB dismissed his appeal on 15 September 2017 after considering it on the papers and without an oral hearing.  The applicant filed a notice of application for leave to apply for judicial review on 25 September 2017.  A hearing date was set down for 21 March 2018 and the applicant appeared in person.

3.  This application only concerns the applicant’s BOR 2 risk claim determination.  He has proposed the respondent to be the Immigration Department but has not specified which decision in respect of which relief is sought.  He does not set out any grounds he relies on.  He only states in his affirmation that he is not satisfied and he cannot go back to India because it is not safe.  I propose to consider the two decisions relating to the applicant’s BOR 2 risk claim.

4.  The Director wrote to the applicant on 23 December 2016 and invited him to submit additional facts if he had any, to support his claim, including a BOR 2 risk claim.  He was asked to submit them within 14 days but the Director received no further information.  The Director sent his Notice of Further Decision dated 17 January 2017 to the applicant at the same address informing him of his decision that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated, including his right to life under BOR 2, upon his return to India.  He was informed of his right to lodge a petition/appeal within 14 days and the applicant duly did lodge it to the TCAB.

5.  The adjudicator treated the appeal as a rehearing.  However, an oral hearing is not an automatic right.  The applicant had only repeated his case in his notice of petition, he had added nothing new.  The adjudicator found there to be no need for further questions as all had been addressed previously.  He found no advantage in holding an oral hearing.  He took into account the applicant had been given an opportunity by the Director to provide further material and submissions and he had written to the TCAB in the notice of appeal/petition and put forward his grounds.  His case was clear and the same as it was previously.  The adjudicator could see neither a need nor the justification to organise yet another oral hearing merely to recanvass exactly the same case as had already been dealt with and disposed of previously.  Therefore, the adjudicator was of the view that the appeal could be dealt with by way of a paper review.

6.  The adjudicator set out Article 2, said he had considered the applicant’s case and the reasons given in the previous TCAB decision which were applicable to this rehearing.  He also found the applicant could not succeed in establishing a case under BOR 2. The adjudicator confirmed the decision of the Director.

7.  Upon a reading of the papers, it is clear it was never the applicant’s case that he would be arbitrarily deprived of life in India, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2.  His dispute involved a private land grab with a wealthy politically connected greedy neighbour who tried to bully and physically force the applicant to sell him his family land at a below-market price.

Leave to apply for judicial review

8.  I am supposed to consider with rigourous examination and anxious scrutiny the papers and grounds of this application.  The applicant has no grounds nor could he submit any during the oral hearing.  He had no other submissions to make when given the opportunity during the hearing.  He did not complain that the adjudicator was wrong not to conduct an oral appeal hearing nor did he complain he was deprived of a chance to be heard.  However, he has said he was not satisfied in his affirmation so I will assume he feels aggrieved there was no oral appeal hearing.

9.  Although it is never a decision to be taken lightly, I agree with the adjudicator that in this case, for the BOR 2 appeal, an oral hearing could be dispensed with and the necessary high standard of fairness could still be maintained.  When the Director and the adjudicator dealt with the torture, BOR 3 and persecution risk claims, there were oral hearings and the applicant was legally represented before the Director.  With the BOR 2 risk claim the applicant did not respond to an invitation to submit further information to the Director.  In the notice of petition, the adjudicator took into account what the applicant submitted but found it a repetition of what had been said before.  There were no new questions of law, fact or credibility that arose as a result of this assessment of his BOR 2 risk claim.  Clearly the adjudicator took the view that in overall fairness the applicant would have nothing useful to contribute by way of being heard if there was a hearing.

10.  Having read both decisions, I do not find any ground that shows there was an error of law made by the Director or the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness by either decision-maker.  The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

11.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1